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June 23, 2017

SCOTUS decides defendant can show prejudice from bad plea advice and prevail on Sixth Amendment claim even with no defense to charge

The Supreme Court this morning handed down three more opinions, and the one notable criminal case decided today was Lee v. United States, No. 16–327 (S. Ct. June 23, 2017) (available here). The Chief Justice wrote the opinion for the Court, which starts and ends this way:

Petitioner Jae Lee was indicted on one count of possessing ecstasy with intent to distribute.  Although he has lived in this country for most of his life, Lee is not a United States citizen, and he feared that a criminal conviction might affect his status as a lawful permanent resident.  His attorney assured him there was nothing to worry about — the Government would not deport him if he pleaded guilty.  So Lee, who had no real defense to the charge, opted to accept a plea that carried a lesser prison sentence than he would have faced at trial.

Lee’s attorney was wrong: The conviction meant that Lee was subject to mandatory deportation from this country.  Lee seeks to vacate his conviction on the ground that, in accepting the plea, he received ineffective assistance of counsel in violation of the Sixth Amendment.  Everyone agrees that Lee received objectively unreasonable representation. The question presented is whether he can show he was prejudiced as a result....

We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial?  Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time.  See id., at 6.  Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.

Lee’s claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence.  Accordingly we conclude Lee has demonstrated a “reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S., at 59.

Justice Thomas wrote a dissent joined by Justice Alito which gets started this way:

The Court today holds that a defendant can undo a guilty plea, well after sentencing and in the face of overwhelming evidence of guilt, because he would have chosen to pursue a defense at trial with no reasonable chance of success if his attorney had properly advised him of the immigration consequences of his plea.  Neither the Sixth Amendment nor this Court’s precedents support that conclusion.  I respectfully dissent.

June 23, 2017 at 10:28 AM | Permalink


What a joke this opinion is. Prejudice is measured by likely outcome, not value of the chance. Roberts is looking more and more like a mistake.

Posted by: federalist | Jun 23, 2017 12:34:43 PM

Opinion in this case tracks the way that I have always understood Hill and the way that it's been applied in my state (which has had a rather conservative bench) -- that likelihood of success at trial was relevant to the credibility of the defendant's claim that he would go to trial but that ultimate issue was whether this defendant would have gone to trial.

Posted by: tmm | Jun 23, 2017 1:42:50 PM

Isolated statement in Hill that is totally against the tide, so to speak . . . .

Posted by: federalist | Jun 23, 2017 2:54:09 PM

Federalist writes, "What a joke this opinion is. Prejudice is measured by likely outcome, not value of the chance. Roberts is looking more and more like a mistake."

I agree. Contrary to Republican hopes, he is actually turning into a thoughtful, caring judge. A mistake indeed.

Posted by: anon3 | Jun 23, 2017 9:17:48 PM

A case where the defendant still only has a long-shot chance isn't the one I personally would take to determine how "mistaken" each side thought about Roberts.

On voting rights, the death penalty, same sex marriage, enemy detainee issues, gun rights, campaign finance and a variety of other things, Roberts decided repeatedly in a way conservatives appreciated. If they expected he never would vote in a way they felt wrong, that would be misguided. This includes his long game technique.

Posted by: Joe | Jun 23, 2017 10:54:54 PM

Thoughtful is fine but caring should be no part of a judge's job.

Posted by: Soronel Haetir | Jun 23, 2017 10:55:20 PM

At the very least, a district court judge can be caring to some degree when dealing with litigants, attorneys, jurors and so forth. I would think even a justice can be caring to some degree. You can apply the law while still be caring when the job allows it, including to those arguing the case. Probably hard not to be caring at all, judging still done by humans.

Posted by: Joe | Jun 24, 2017 12:28:45 AM

Non-citizen drug dealer gets to stay in America--gotta love the federal courts. ICE should figure out how to deport him anyway.

Posted by: federalist | Jun 24, 2017 8:34:56 AM

Actually, more careful reading would have shown that the non-citizen gets to go to trial.

Posted by: Mark M. | Jun 24, 2017 1:53:59 PM

federalist's hyberbole aside, I am not persuaded by the logic in the majority's opinion either. It's not that Robert's distinction is wrong so much as it is misapplied. The defendant is going to go to trial, lose, and then get deported anyway with nothing but a great deal of friction and heat for no apparent gain. How does that square with any meaningful notion of harmless error review? Robert's opinion reads like the need to invent a justification for what is really an arbitrary, even idiosyncratic result.

Posted by: Daniel | Jun 24, 2017 5:23:02 PM

A person has the right to go to trial, even if that person has little chance of a not guilty verdict. What percentage chance will not be "harmless" in that sense to deprive him of being able to choose with the understanding that his ability to stay in the country is one the line?

People do desperate things repeatedly if they know even a tiny chance is present, feeling compelled, having the right, to try. Here, a basic bit of information was denied in making such a choice.

"Harmless" error is appropriate in certain cases where guilt would be found anyway so the fundamental fairness of the result in including certain tainted evidence remains, etc., but when it involves the basic right to choose in this sense, it is misapplied as Roberts noted. The basic right to certain things making harmless error inappropriate has been cited in cases.

Posted by: Joe | Jun 25, 2017 10:56:18 AM

Joe, of course, fails to mention the fundamental problem---it's easy to say, "yeah I would have rolled the dice at trial." And defendants get to have their cake and eat it too.

This opinion is a joke. To have outcomes based on a judge believing or not the "yeah I would have gone to trial"isn't law. Every defendant is going to say it . . . .

Posted by: federalist | Jun 25, 2017 1:08:36 PM

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